inrolment (g). If the protector consents by deed, such deed CHAPTER XXI. must be executed by him and produced to the lord or his steward at or before the time when the surrender is made by which the disposition is effected, or otherwise the consent will be void (h). The consent, if not given by deed, must be given by the protector to the person taking the surrender, and provision is made for evidencing the fact of the consent having been given, (1) out of Court, or (2) in Court (¿). A disentailing assurance may be inrolled within six months after execution, notwithstanding the death of the tenant for life who executed it (k). of inrolled Every inrolled deed operates and takes effect as from the date Relation back of its execution, with the exception that every such deed shall deeds. be void as against a purchaser for valuable consideration claiming under a deed, although subsequently executed, if such subsequent deed shall be the first inrolled (7). case of bank Sect. 59 of the Act contains provisions as to the inrolment of Inrolment in deeds of disposition of freeholds, and entry on court rolls of ruptcy. deeds of disposition of copyholds, and of deeds of consent, in the case of the bankruptcy of tenants in tail. to be observed ment. Having regard to these provisions, it is obvious that it is of Precautions the utmost importance to a mortgagee of disentailed lands to by mortgagee see that his security is rendered effectual as against subsequent as to inrolmortgagees of the same lands by an immediate inrolment of his assurance. Indeed, he ought not to part with his money until the assurance has been enrolled, nor until he has ascertained that up to the time of actual inrolment no other assurance of the mortgaged lands by the tenant in tail has been inrolled. These precautions will prevent the mortgagee's security from being prejudiced by any dealing with the property of which he has not express notice; for none of the provisions in the Act respecting voidable estates have the effect of confirming them against purchasers for value without notice. As the inrolment of a disentailing assurance relates back to its execution, it follows that intermediate conveyances by the persons deriving title under it will have their full effect. (g) Boyd v. Pawle, 14 W. R. 1009. (k) Re Piers, 14 Ir. Ch. R. 452. Usual form of powers of mortgaging. Power of leasing, when includes power of mortgaging. CHAPTER XXII. OF MORTGAGES BY LIMITED OWNERS UNDER POWERS. SECTION I. OF MORTGAGES UNDER EXPRESS POWERS OF MORTGAGING. i.-Express Powers of Mortgaging in Settlements and Wills.— The express powers of mortgaging which, before the passing of the Settled Land Act, 1882 (a), were not unfrequently inserted in strict settlements of real estate by deed or will were, according to the general practice, given to the trustees of the settlement, not to the tenant for life; but, usually, such powers were made exerciseable by the direction or with the consent of the tenant for life, if of full age, and then only for certain specified purposes, such as providing money for raising portions, renewal of leases, enfranchisement of copyholds, equality of exchange, or paying off incumbrances. Powers of mortgaging are even now sometimes inserted in such settlements, where money is likely to be required for purposes other than those for which tenants for life are by statute empowered to raise money by mortgage of the settled lands (b); but the consent of the tenant for life is now necessary to the exercise by the trustees of any such power (c). If a tenant for life with power to lease for such number of years and upon such terms as he shall "think fit" (d), or "think reasonable and proper " (e), mortgages by demise for ninety-nine years, at a peppercorn rent, such mortgage is a charge on the inheritance; the lease is not invalid on the ground of a supposed or real hardship on the remainderman, as the power is left to (a) 45 & 46 Vict. c. 38. (b) See ibid., s. 18, and the Settled Land Act, 1890 (53 & 54 Vict. c. 69), 8. 11. (c) 45 & 46 Vict. c. 38, s. 18. See as to several tenants for life, 47 & 48 Vict. c. 18, s. 6. (d) Sheehy v. Lord Muskerry, 1 H. L. C. 576; Talbot v. Tipper, Skin. 427. (e) Mostyn v. Lancaster, 23 Ch. D. 583, C. A. the discretion of the tenant for life, who may execute it for his CHAPTER XXII. own benefit. A tenant for life, with power to renew leases for lives on the Mortgage of usual rents and to take fines, may mortgage his interest, includ- renewal fines. ing the fines, for his own benefit (ƒ). tenant for life his interest. parted with ii.-Exercise of Power after Alienation.-The power of a Exercise of tenant for life to sell or mortgage (g), or to consent to or direct power by a sale or mortgage (h), expressly limited to him under a settle- who has ment, will not, as a rule, be destroyed by the alienation or charging by him of his life interest under the settlement. And it makes no difference whether the alienation of the life interest is by the act of the tenant for life or by operation of law, but in such case the power cannot be exercised except with the consent of the trustee in bankruptcy (i). If, however, it clearly appears from the language of the deed whereby the power is created that it is intended to be exerciseable by the tenant for life only so long as he retains possession of his life interest, or, à fortiori, if the power contains an express statement to that effect, a charge or alienation by him of his interest under the settlement will destroy the power (k). In Long v. Rankin (1), where the question was, whether a power of leasing in the tenant for life was destroyed by his charging his life interest to secure an annuity, the above proposition was recognized, on the ground that "he who gives the power may give it with what qualifications he pleases." Where the question is, whether a power to sell or mortgage or to consent to or direct a sale or mortgage is destroyed or not by an alienation by the tenant for life of his life interest, the fact that in such alienation the power was expressly reserved is wholly immaterial (m). currence of Where the tenant for life has parted with his life interest, it Whether condoes not appear to be necessary, in a subsequent exercise of his alienis power by the tenant for life, that the concurrence of the alienee necessary. (f) Simpson v. Bathurst, L. R. 5 Ch. A. 193. (g) Jones v. Winwood, 3 M. & W. 653; S. C., 10 Sim. 150. (h) Holdsworth v. Goose, 29 Beav. 111; Eisdell v. Hammersley, 31 Beav. 255; Walmesley v. Butterworth, 4 L. J. N. S. Ch. 253; Warburton v. Farn, 16 Sim. 625; Alexander v. Mills, L. R. 6 Ch. A. 124. (i) Re Cooper, Cooper v. Slight, 27 Ch. D. 565; Re Bedingfield and Herring's Contract, (1893) 2 Ch. 332. (k) Haswell v. Haswell, 2 De G. F. & J. 456; Bullock v. Thorne, 1 Moo. 615. And see Alexander v. Mills, sup., at p. 133. (7) Sug. Powers, 8th ed. 58, and App. at p. 895. (m) Alexander v. Mills, sup. 382 CHAPTER XXII. of the life interest should be obtained, provided the rights of the alienee are not prejudiced (»). But, upon the principle that a man may not derogate from his own grant, an exercise of a power by a tenant for life, who has parted with or charged his life interest, will be valid only so far as it does not prejudicially affect the estate of the alienee (o). If the exercise of the power would interfere with the rights of the alienee of the life interest, the power is not extinguished, but merely suspended, and may be exercised with the consent and concurrence of the alienee, who may re-convey to the tenant for life or join in the conveyance to the subsequent purchaser or mortgagee (p). Statutory powers of mortgage Liability of mortgagees to see to application of moneys advanced. SECTION II. OF MORTGAGES BY LIMITED OWNERS, ETC. UNDER STATUTORY i.-Generally.-Numerous statutes, of which the principal are briefly noticed in the following pages, have been from time to time passed conferring powers of mortgaging settled property on limited owners, and on behalf of persons under disability for specified purposes; these statutes generally contain particular forms of mortgage enforced or recommended by authority of Parliament; but if a statutory mortgage is contemplated, reference must be made to the particular Act in question for the requisite information (9). Questions on the liability of a purchaser or mortgagee under an Act of Parliament to see to the application of his money do not often arise, as a proper clause of indemnity is always inserted in well-drawn Acts. But, in the absence of any such clause, it seems that a purchaser or mortgagee will be bound to see that the money he advances is applied for the purposes of the Act, notwithstanding that he pays it into the hand appointed by the Act to receive it (). (n) Hardaker v. Moorhouse, 26 Ch. D. 417, at pp. 422, 424. (0) West v. Berney, 1 R. & My. 431; Noel v. Lord Henley, M'Cl. & Y. 302; Stewart v. Marquis of Donegal, 2 J. & Lat. 636; Goodright v. Cator, Doug. 477; Alexander v. Mills, L. R. 6 Ch. A. 124. (p) Walmesley v. Butterworth, 4 L. J. N. S. 253; Alexander v. Mills, L. R. 6 Ch. A. 124; Re Bedingfield and Herring's Contract, (1893) 2 Ch. 332. (9) As to land charges under various statutes made otherwise than by way of mortgage, see post, pp. 1378 et seq. (r) Cotterell v. Hampson, 2 Vern. 5. tenants for ments with ii.-Mortgages under Inclosure Acts. By the General CHAPTER XXII. Inclosure Act (s), husbands, guardians, trustees, committees, Guardians, or attorneys of any owners of allotments and exchanged lands, life, &c. may being under coverture, minors, lunatics, beyond the seas, or charge allotunder any other disability, and any of such owners, being expenses. tenants in tail, or for life or lives, or years determinable on a life or lives, or any other contingency, or otherwise interested, as therein mentioned (except rectors or vicars), may charge such allotments or exchanged lands with such sums, not exceeding 57. per acre, as the Inclosure Commissioners (t) shall, by their award, adjudge necessary to defray their shares of the charges and expenses incident to the obtaining any Inclosure Act and carrying the same into execution, and of charging the lands, and may mortgage or otherwise subject the lands to be charged to the person advancing the money for any term of years; or in case any person in possession, liable to a share of the expenses, shall choose to advance the money, then the commissioners may, by deed attested by two witnesses, mortgage or otherwise subject the lands to such person paying the same for any term of years for the payment of such sum, with interest to commence on the termination of his right in the premises; and such deed is to contain a covenant to pay and keep down the interest, so that no person shall be liable to pay arrears of interest other than for six calendar months preceding the time when his title to possession shall have commenced. allotments. These provisions are in substance re-enacted and extended by Power to sect. 133 of the General Inclosure Act, 1845 (u), which provides mortgage that tenants for life or in tail, or for any other estate of freehold or inheritance, and their husbands, guardians, &c., in case of disability or incapacity, and trustees, or feoffees for charitable, parochial, or other uses, or the majority of them, with the consent of the Commissioners (t), and incumbents, with the consent in writing of the bishop of the diocese, and the patron of the benefice, may charge their allotments with any money not exceeding 57. per acre towards their respective proportions of the inclosure expenses, and for securing the repayment of such money, with interest, may mortgage or demise their allotments; provided every such mortgage or demise, by or on behalf of a (8) 41 Geo. III. c. 109, s. 30. Similar powers of mortgaging were commonly inserted in the particular Inclosure Acts passed previously to the general Inclosure Act. (t) Now the Board of Agriculture. |